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					 Constitutional Law I

Eleventh Amendment

    March 8, 2006
Meaning of Sovereign Immunity
   The Sovereign (king, State, officers) is not
   bound by the law
        Hard to maintain in post-1776 America
           Non sub homine, sed sub Deo et lege
        Rule of substantive law
    The Sovereign is not subject
    to suit in its own courts
    without its consent
        Rule of jurisdiction

Spring, 2006            Con Law I - Manheim       2
Chisholm v. Georgia (1793)
   Background
        Georgia reneges on a revolutionary war debt
        Chisholm (from S.Car.) sues GA in federal court
           Art. III, § 2: “The judicial power shall extend
               to … all controversies between a State and
               citizens of another State…” Accord fed statute
        GA asserts sovereign immunity
           Does Art. III merely confer jurisdiction; or
           Does it enact a rule of law overriding immunity
               defenses states might otherwise have?
                   S.Ct. adopts the latter interpretation


Spring, 2006                     Con Law I - Manheim          3
Chisholm v. Georgia (1793)
   Art. III: merely jdx’l or also substantive law
        “The people of the United States” intended to bind the
         states by the legislative, executive, and judicial powers
         of the national government. The Court held that
         supreme or sovereign power was retained by citizens
         themselves, not by the "artificial person" of the State of
         Georgia. The Constitution made clear that controversies
         between individual states and citizens of other states
         were under the jurisdiction of federal courts. State
         conduct was subject to judicial review.




Spring, 2006              Con Law I - Manheim                4
Enactment of 11th Amendment
    Text
         “The judicial power of the United States shall not
          be construed to extend to any suit in law or
          equity, commenced or prosecuted against one of
          the United States by citizens of another State or
          by citizens or subjects of any foreign state.”
    Sovereign Immunity
        How does 11th Amd correct Chisholm?
            Withdraws federal jurisdiction in certain cases; or
            Creates a rule of substantive law – sovereign immunity
        If the latter, does the 11th bestow sovereignty
         immunity, or merely restore whatever immunity
         states had prior to their entry into the Union?
Spring, 2006               Con Law I - Manheim                     5
Withdrawal of Federal Jdx
   Diversity Suits
        11th amd divests federal courts of jdx over
         states (as defendant)

 The judicial Power           The judicial power of the
 [of the United States]       United States shall not be
 shall extend to all          construed to extend to any
 Cases, in Law and            suit in law or equity,
 Equity… between a            commenced or prosecuted
 State, or the Citizens       against one of the United
 thereof, and foreign         States by citizens of another
 States, Citizens or          State or by citizens or
 Subjects."                   subjects of any foreign state.”
Spring, 2006           Con Law I - Manheim               6
Withdrawal of Federal Jdx
   Diversity Suits
        11th amd divests federal courts of jdx over
         states (as defendant)
   Federal Question cases
        Hans v. Louisianna (1890)
           11th Amd. to be liberally construed
           Withdraws federal jurisdiction against state defendants
               in all cases, including federal question cases.
        Compare Sedgwick proposal (for 11th amd):
           "No state shall be liable to be made a party defendant,
               in any of the judicial courts established … under the
               authority of the United States …"

Spring, 2006                  Con Law I - Manheim                 7
Federal Supremacy after 11th Am
   Effect of 11th on federal supremacy
        If states can't be sued in fed. court on federal
         claims, how is const'n enforced against them?
        Suit in state court
           Myth of parity
           Review by USSC

   Stripping doctrine
        Suits against state officers (Ex Parte Young)
           A state officer violating federal law cannot be acting
               on behalf of the state, so cannot assert state SI
        Only applies to injunctive relief
           Damages come from state treasury
Spring, 2006                 Con Law I - Manheim                   8
Pennhurst v. Halderman                                (1984)
   Stripping doctrine
        Suit against state officer for violating federal
         rights (statutory, as well as constitutional)
        Suit against state officer for violating state rights
           State officer acting ultra vires her authority
        Stripping based on fiction to enable supremacy
         of federal law; does not extend to state law
        Kenneth Culp Davis: "as long as the doctrine of
         sovereign immunity continues to prevent suits which are
         really against the government to be brought against the
         government, what is needed is consistent adherence to
         the false pretense and rejection of the truth."
Spring, 2006               Con Law I - Manheim               9
Spring, 2006   Con Law I - Manheim   10
Exceptions
   Stripping Doctrine (Ex Parte Young)
   Abrogation by Congress
   Explicit State Waiver (Atascadero)
        By statute (e.g., Prop 57 bonds)
        By invoking federal jurisdiction (Clark v. Barnard)
        By removing case to federal court (Lapides)
   Inapplicable
        To local government (Mt. Healthy)
        In Supreme Court (ME v. Thiboutot)
        Suits by federal gov’t (US v. MS)
        Suits by other states (CO v. NM)
Spring, 2006            Con Law I - Manheim            11
Exceptions
   Congressional Abrogation
        Theory: in ratifying the constitution, states
         relinquished power – hence sovereignty.
         When congress acts within its enumerated
         power, states have no sovereignty.
        Not all federal laws abrogate SI – only those
         that say they do




Spring, 2006           Con Law I - Manheim         12
Congressional Abrogation
    Power to Abrogate
         14th Amd. Section 5 (post-dates 11th amd)
         Section 8 (pre-dates 11th amd)
    Explicit abrogation
         Congress must make clear that law extends
          to states (Gregory v. Ashcroft) and that
          enforcement suits may be brought against
          state in federal court



Spring, 2006          Con Law I - Manheim        13
Abrogation under Section 5
   Fitzpatrick v. Bitzer (1976)
        14th amd is a limitation on state power
           States have no sovereign right to act contrary
        § 5 empowers congress to enforce those limits
           States have no sovereign right to defy enforcements
        11th Amd (whatever it means) is limited by
         subsequent enactment of 14th Amd
           Gen'l rule of construction: in case of conflicting
               provisions, the later in time controls



Spring, 2006                 Con Law I - Manheim                 14
Abrogation under Section 8
   Pennsylvania v. Union Gas (1989)
        11th Amd did not create sovereign immunity; it
         restored that which existed before Chisholm
        Whatever sovereign immunity states enjoyed
         prior to ratification, they ceded it coextensive
         with grants of substantive power to congress.
           This "background principle" of State sovereign
            immunity was necessarily limited by § 8 grants of
            power to congress
           Any enactment within congress' § 8 powers is
            capable of overriding state sovereign immunity

Spring, 2006             Con Law I - Manheim                 15
Seminole Tribe v. Florida                      (1996)
   Indian Gamin Reg. Act requires states to
   negotiate with Indian tribes re. Gaming
        Act allows tribes to sue States in federal court if
         they fail to negotiate in good faith
        Act passed under Indian commerce clause
    Abrogation
        Does act "unequivocally
         express" congress'
         "intent to abrogate
         [state] immunity"?
        Can congress do so?
Spring, 2006            Con Law I - Manheim           16
Seminole Tribe v. Florida                   (1996)
   Majority:
        Section 8 powers were limited by 11th Amd
        Congress cannot abrogate when acting per § 8
        Penn. v. Union Gas overruled
    Stevens dissent:
        Congress cannot
         provide enforce-
         ment against
         states of most
         federal rights

Spring, 2006          Con Law I - Manheim       17
Seminole Tribe v. Florida                            (1996)
   Souter dissent:
        Did states enjoy SI in own courts before 1789?
        If so, did that immunity carry over to federal
         courts after ratification?
           No historical record, at least wrt federal question
               cases, suggesting "a general understanding that the
               States would have no immunity in such cases"
        Even if states otherwise have SI in federal
         cases, can congress abrogate it?
           What is the federalism difference between suits
            under self-executing provisions of the constitution, &
           Suits explicitly authorized by Congress?
Spring, 2006                Con Law I - Manheim              18
Spring, 2006   Con Law I - Manheim   19
Alden v. Maine                  (1999)
   Suit against Maine under FLSA
        Fed.Ct. lacks jdx per 11th Amd.
        11th is more than a w/drawal of jdx; it evinces a
         substantive rule of law (immunity defense)
        Federal substantive law applies in state court
   SI as a constitutional rule
        Not based on 11th amd. per se
        Not based on any constitutional text
        Based on const’l “understandings”

Spring, 2006           Con Law I - Manheim          20
Alden v. Maine                          (1999)
   Theory of state sovereign immunity
        States were sovereign, pre-constitution
        Upon ratification they relinquished sovereignty
         only pursuant to the “plan of the convention”
           I.e., wherever they precluded their own action
                  e.g., Art. I, §10; Art. IV; 14th Amendment
           Not where they merely delegated power to congress
                  delegation of enumerated power was over individuals not
                   over states; therefore
                      states relinquished sover’ty viz individuals (supremacy)

                      delegation did not include relinquishment of immunity


   Nice theory; but is it law?
Spring, 2006                   Con Law I - Manheim                      21
FMC v. S. Carolina                                   (2002)
   Claim: SC violates Shipping Act
   Forum: Federal Agency (“Art. I court”)
        Agencies often adjudicate claims pertaining to
         their specialized jdx
        Agencies can also file suit on behalf of claimant
           e.g., US v. Morrison; NLRB
                  Neither 11th Amd. nor SI apply to suits against states by US

   “Dual Sovereignty” in agency adjudications
        11th Amd. does not apply by its own terms
        No history of SI – no federal agencies
Spring, 2006                   Con Law I - Manheim                     22
FMC v. S. Carolina                                  (2002)
   No text, no historical practice, then what?
        Ask the framers
           “To decide whether SI applies here we must examine
            FMC adjudications to determine whether they are the
            type of proceedings from which the Framers would
            have thought the States possessed immunity when
            they agreed to enter the Union.”
           “we cannot imagine that they would have found it
            acceptable to compel a State to answer complaints
            of private parties before an administrative tribunal”
        By extension
           “FMC administrative proceedings bear a remarkably
               strong resemblance to civil litigation in federal cts.”
Spring, 2006                  Con Law I - Manheim                23
FMC v. S. Carolina                              (2002)
   Deconstructing FMC proceedings
        Step 1: private citizen asks US to sue
           Breyer: 1st amendment right to do so
        Step 2: US may file suit in federal court
           SI doesn’t apply to suits against states by the US
   Bottom line
        Actions that challenge a state’s “dignity” are
         barred, not by anything actually in the consti-
         tution, but by what 5 members of the court
         think the framers would have preferred.
           These 5 judges are the “strict constructionists”
           Other judges are “activist”
Spring, 2006              Con Law I - Manheim                  24
    TSAC v. Hood (2004)
        Abrogation under Congress’ Bankruptcy Power
             Art. I, § 8, cl. 4:
               Congress has power “to establish ... uniform Laws on
                    the subject of Bankruptcies throughout the US.”
             11 U.S.C. § 727(b) [Chapter 7, Voluntary Discharge]:
Enjoys SI,     discharge under sub § (a) of this section discharges
  but not           the debtor from all debts that arose before the date
 based on
11th Amd;           of the order for relief under this chapter
   often
  waived     Defendants:
               Federal: United States; Dept. of Education; Sallie Mae
               State: TSAC
               Private: University Account Services
     Spring, 2006                 Con Law I - Manheim              25
TSAC v. Hood (2004)
   Lower court holding (BC, BAP, 6th Cir):
        States ceded their SI at const’l convention
        Congress can abrogate per bankruptcy clause
   Rehnquist:
        11th Amd & Abrogation are inapposite
        In Rem proceedings are not against a state
          Literal terms of 11th amd are to be disregarded
          Bankruptcy discharge operates against whole world
                  Education loans gen’ly not dischargeable 11 USC § 523(a)(8)
                   unless hardship is proven
                  Fed.R.Bank.P require “adversary proceeding” against State
                  Formal distinction even if an “affront” to State sovereignty
Spring, 2006                     Con Law I - Manheim                    26
TSAC v. Hood (2004)
   Thomas (dissent)
        This proceeding was in personam (adversary)
         even if other bankruptcy proceedings are in rem
        Congress justified discharge against states as an
         abrogation of State SI, not as exception to rule
        Grant of power to Congress to establish “uniform
         laws on Bankruptcy throughout the US” is not
         enough to override the (non-textual, pre-const’l)
         immunity of states from federal regulation
   Who won the Civil War?
     Constitution of the Confederate States of America
Spring, 2006           Con Law I - Manheim           27
Spring, 2006   Con Law I - Manheim   28
Spring, 2006   Con Law I - Manheim   29
         The remainder of these slides are
         not covered this semester; they
         involve Congress’ ability to abrogate
         11th amendment immunity under its
         14th Amendment, Section 5 powers.
         Some of this will be covered in your
         Constitutional Law II course.



Spring, 2006           Con Law I - Manheim       30
Florida Prepaid v. College SB (1999)
   College SB patent infringed by state agency
        Patent laws passed pursuant to patent clause
        Fed courts have exclusive jdx in patent cases
        Patent Remedy Act allows suits against states
   Can congress abrogate SI per Patent Clause
        No different than other § 8 powers
   Can congress abrogate SI per § 5 powers
        Yes, so long as law is "appropriate"
           Congruence & proportionality test of Boerne


Spring, 2006             Con Law I - Manheim              31
   Florida Prepaid v. College SB (1999)
       Congruence & proportionality for § 5 laws
         1. What constitutional violation is at stake?
               State infringement of patent (federal property right)
               If done w/o compensation, it violates "due process"
         2. Is the remedy provided by congress congruent
  New      to this constitutional wrong?
require-     Act allows suit without first seeking comp. from state
  ment
 for § 5 3. Viewed as a prophylactic measure, is it propor-
 enact-    tional to likelihood & magnitude of the wrong?
 ments
               Apparently not since no pattern of widespread abuse
               Prophylactic laws appropriate only for "widespread
                   and persisting deprivation of constitutional rights"
    Spring, 2006                 Con Law I - Manheim               32
Florida Prepaid v. College SB (1999)
   Congruence & proportionality for § 5 laws
        Conclusion: Since the Patent Remedy Act is
         neither remedial nor prophylactic,
        It is not responsive to unconstitutional behavior
        § 5 must be a contrived basis for the law; it is
         really based on § 8.
   Stevens dissent:
        Court creates loophold in patent law; states
         have total freedom to infringe private property
           Patents issued to, and infringement by, states is not
               a trivial issue
Spring, 2006                     Con Law I - Manheim       33
Kimel v. Fla Bd. of Regents (2000)
   Age Discrimination in Employment Act                 (ADEA)
        Prohibits age discrimination by employers
          Including states
          With exceptions (e.g., BFOQ)
        Passed pursuant to congress' § 8 & § 5 powers
          The former cannot abrogate state sovereignty
          The latter can, but only if Congruent & Proportional
               to a 14th Amd violation
   Boerne Test:
        Congruent: remedy must track § 1 violation
        Proportional: preventative measures must
         be in relation to risk of § 1 harm
Spring, 2006                Con Law I - Manheim           34
Kimel v. Fla Bd. of Regents (2000)
   Boerne Test:
     1. Identify the constitutional violation
          Irrational age discrimination; almost never found
           since age can be used as a proxy for everything else
     2. Congruence
          ADEA is not congruent because it forbids perfectly
           lawful discrimination by state and local gov'ts
     3. Proportionality
          As a prophylactic measure to prevent unconst. age
           discrimination, ADEA is way out of proportion
                Unconst. age discrimination is an inconsequential problem;
                Therefore, this is not an appropriate legislative response

Spring, 2006                 Con Law I - Manheim                    35
Univ of Alabama v. Garrett                                         (2001)
   Americans with Disabilities Act (ADA) Title I
        Prohibits discrimination by employers (states)
   Boerne Test:
     1. Identify the constitutional violation
           Discrimination against disabled subject to RB test
           States need not accommodate disabled (if rational)
     2. Congruence
           ADA not congruent since it forbids lawful state action
     3. Proportionality
           No overwhelming evidence of irrational state discrim.
                Irrational discrim. by cities not relevant since no SI
           § 5 law must be proportional to unconst State action
Spring, 2006                  Con Law I - Manheim                         36
Univ of Alabama v. Garrett                               (2001)
   Boerne Test:
     3. Proportionality
           Congress cannot legislate against isolated or
            occasional unconstitutional state actions
           There must be widespread pattern of illegality before
            it is "appropriate" for congress to legislate against it.
           And the pattern must be found by Congress itself,
            not some agency or independent task force
   Cumulative impact of Garrett et al.
        Congress cannot create new rights
        Congress cannot expand scope of
         existing rights, beyond S.Ct. rule
Spring, 2006              Con Law I - Manheim                 37
Tennessee v. Lane                           (2004)
   ADA Title II prohibits discrimination against
                    same as Supreme
   qualified individuals by a “public entity”
                   Court’s “indicia of
                      suspect class” for
        Tennessee state courthouses not accessible
                       equal protection
   Congressional findings:
 • disabled are discrete
   and insular minority
 • history of purpose-
   ful discrimination
 • unfair stereotype
   assumptions
Spring, 2006          Con Law I - Manheim            38
Tennessee v. Lane                               (2004)
   Abrogation of 11th Amendment Immunity
        Clear statement required
           “States shall not be immune”
        Valid enactment (14th amd § 5) required
   Boerne test:
        Identify const’l rights at stake
           irrational discrimination against disabled
           due process access to judicial system (courts)
           criminal procedure rights (6th am. confrontation)
        congruence and proportionality
Spring, 2006              Con Law I - Manheim                39
Tennessee v. Lane                               (2004)
   Congruence:
        Statutory remedy must match const’l rights
           Aimed at due process violations (strict scrutiny)
   Proportionality:
        Risk and scope of const’l violation must justify
         prophylactic (preventative) measures
           High risk: “pattern of unconstitutional treatment” –
            up to 76% of public services were inaccesable
           Scope/breadth: Title II does not over-respond to
            const’l violations. Only reasonable accommodations
            are required.
                  If it did, the Act might be viewed as an attempt to “rewrite
Spring, 2006
                   the 14th Amd;” i.e., Icreate new rights
                                  Con Law - Manheim                      40
Tennessee v. Lane                               (2004)
   Dissent (Rehnquist on Congruence)
        Title II duty to accommodate not limited to
         services/actions that trigger strict scrutiny
           Same as to much of the evidence before congress
           Apply rationality standard for physical barriers
        Higher standard required for § 5 enactments
         when abrogating state sov. immunity
           No widespread pattern of State violations; most
            cases cited by congress involved local gov’t, which
            doesn’t have 11th Amd immunity
           But, County courts are “arms of the state” for 11th
            amd.
Spring, 2006              Con Law I - Manheim                  41
Tennessee v. Lane                               (2004)
   Dissent (Rehnquist on Proportionality)
        Title II applies to instances where failure to
         accommodate is lawful (e.g., hockey rinks)
          Scope/breadth: Title II is not overkill simply because
           some applications (not before Court) might not pass.
          FACIAL vs. AS-APPLIED unconstitutionality




Spring, 2006              Con Law I - Manheim               42
Tennessee v. Lane                    (2004)
   Dissent (Rehnquist on
 That a law might be unconsti- Proportionality)
                                          Rehnquist is wrong:
  tutional AS-APPLIED in some              There is no such
otherTitle II applies to instances where failure to
    
       case (not before the Ct) is          thing as FACIAL
      accommodate case
      immaterial to thisis lawful (e.g., hockey rinks)
                                            constitutionality
        Scope/breadth: Title II is not overkill simply because
         some applications (not before Court) might not pass.
        FACIAL vs. AS-APPLIED unconstitutionality
  Dissent (Scalia on Boerne)
    Congrence/Proportion’y invites judicial activism
    Replace with strict interpretation of “enforce”

        Dictionary definition (1868).
        No prophylactic laws; only remedial (ex. race discrim)
                    approach for
        Why not same Con Law I - Manheim text of 11th Amd?
Spring, 2006                                            43

				
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